Monday, June 27, 2011
Connubial rights the last step toward a fully gender-neutral domestic relations law
Marriage is a right, and certainly not an obligation. The bundle of rights, responsibiliities, privileges and obligations that come with the issuance of a license and the performance of a ceremony in front of witnesses is not mandatory.
There was a time when there was no hope for connubial rights for same sex couples, and that went deeper than the different terms for spouses, "husband" and "wife."
Years ago, the law provided a different bundle to the male party than that provided to the female party, and if we go far enough back we see that the woman's bundle was often rather less, and then sometimes some aspects of the bundle were preferential to the woman. The idea was that there was a certain legal complementarity that could not heve existed under the law with two wives, or two husbands.
In those days, before the rest of the domestic relations law was gender-neutralized, there was not a hope for legal marriage in the L&G community - and as with the Fox in Aesop's fable involving the grapes that were so tempting but just out of reach, the community insulated itself with the idea that such unequal rights as were offered to the heterosexual parties to marriage only confirmed and expanded patriarchal dominance, or were in some other way just sour and inedible.
In the past couple of decades, the state legislature has gone so far as to smoothe out all the differences in the bundles of rights afforded the parties to marriage, until there was only one right that had not been made gender-neutral, and that was the connubium.
And now it has, at least in New York, five other states and several countries.
There are those for whom the grapes are still sour and will always be that way - and they still have the right to not get married.
For others, the right to form a family with the mutual rights and obligations appurtenant thereto, is a right that they would like to exercise - and having the right is a good thing.
Archbishop Dolan still disagrees. Yesterday, after celebrating mass at St. Patrick's Cathedral in Manhattan, which is no longer on the route of the annual LGBT Pride March since New York City shortened the diustance for the sort of parade that requires street closures, he continued to assert that "marriage is between a man and a woman." He has only 20-something days left for that to be true in New York. After that, he will be able to truthfully say that "opposite sex marriage is between a man and a woman" or "the Sacrament of Matrimony in the Roman Catholic Church may be celebrated only by a man with a woman." The connubium of marriage has been legislated to be gender-neutral in New York - and perhaps it would be wise for the archbishop to consider that there is a difference between civil marriage and the Roman Church's sacrament. (But of course he can't do that. As nice a man as he is on a personal level, he has no choice but to stick with the party line as ordered by the irrational minds that control the Vatican. I am sure that Dolan is smart enough to know how silly he sounds, but that cardinal's hat is within reach, and this is a boat he would rather not rock. )
It's interesting to note that the Archbishop's position seems to be consistent with that of those in the L&G community who oppose marriage as a patriarchal institution, despite all the gender-neutralizing that has been done to the rest of the domestic relations law before the connubium was also made gender-neutral.
Neither Dolan nor the L&G folks who philosophically oppose marriage rights on a gender neutral basis seem to realize that the law has done all that smoothing-out of the respective rights of the parties to marriage, a smoothing of the way to last week's historic passage of marriage equality in New York. Connubium is (or shortly will be) a gender-neutral right in New York.
The New York compromise should be a blueprint for other states to follow - even though the conservative anti-marriage churches are not happy with the extension of the connubium, and they are not openly celebrating the protections for those religious organizations that do not wish to celebrate marriages or host wedding receptions, I am sure that they are secretly pleased with the latter.